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April 24, 2024

Sustaining Eviction Mediation Efforts “Post Pandemic”: Out of the Courtroom and Into Public Health?

Deanna Pantín Parrish

In 2016, I sat in a small conference room just off judge’s chambers, wedged between the parties of an eviction dispute so contentious the bailiff had, on more than one occasion, knocked on the door to quiet their cacophony of expletives. When we broke for a private caucus, the tenant’s frustration relented into fear. With panic in her eyes, she asked me to assure her that the police would not be involved in removing her from her home, if and when it did happen. She said she wasn’t sure which would be more dangerous for her son: living on the streets or the police coming into their home and putting them there. My stomach lurched as I told her I could not personally make that guarantee, and that it was unlikely that the court could either. If she and the landlord did not come to an agreement today, she would need to vacate her home. If she refused, the state would intervene. Neither option felt like justice.

Eviction mediation employs a third-party neutral to facilitate a negotiation between a renter and a landlord or other decision-maker with the authority to pursue an alternative to eviction. Anyone who has mediated such disputes probably has a story—or dozens, more likely—that mirrors the one above. Moments where the stakes of an eviction dispute are crystallized, where justice feels far away, where a mediator’s ethical boundaries bump up against the fractured housing system.

Eviction disputes feel high stakes because they are. Psychologically speaking, these cases raise concerns around our basic physiological and safety needs without which, according to Maslow’s hierarchy, a person may not develop psychological stability or self-actualization. Matthew Desmond’s research on eviction tell us an economic story: in his seminal text, Evicted: Poverty and Profit in the American City, he concludes that eviction is a cause, not a symptom, of poverty, with most low-income renting families spending more than half of their income on housing-related costs. And recent research that I conducted with Juan Pablo Garnham of the Princeton Eviction Lab tells us a story of safety and mortality. We found that in 2023 alone, there were over eighty-five media reports of violence—committed by state actors as well as renters—during the eviction process, across thirty-three states. Since we began our research last year, at least fifty-four people are known to have died.

Psychological, financial, and personal safety are all on the line when someone is evicted. Mediators have played an important part in deescalating those stakes, especially in times of crisis.

COVID-19 & the Eviction Mediation Boom

During the height of the COVID-19 pandemic, federal, state, and local governments enacted temporary eviction moratoria as a strategy for mitigating the spread of COVID-19, as well as ensuring that renters remained housed. Such measures temporarily slowed eviction filings; between March 15 and December 31 of 2021, eviction filings were 65% below the historical national average. During this same time, the Department of the Treasury’s Emergency Rental Assistance Program (ERAP) funds became available to assist eligible households with financial support and housing stability services. In practice, this encouraged the development of various “eviction diversion programs,” of which eviction mediation was the primary strategy.

A survey of eviction diversion programs, jointly published by the American Bar Association and the Harvard Negotiation and Mediation Clinical Program in 2021, found that over 64% of eviction diversion programs reported offering parties either pre- or post-filing mediation, making it the most common approach among those surveyed. In 2022, twenty-six eviction mediation programs were known to be operational; of those, at least fifteen were established in response to the COVID-19 pandemic. During the heigh of the pandemic, mediation was endorsed by the Department of the Treasury as a best practice in eviction diversion, particularly when paired with rental assistance early on in housing disputes. This time marked a heyday for housing-related mediation initiatives, the likes of which had not been seen since the 2008 subprime mortgage crisis—the blueprint on which many organizations based the more recent eviction mediation efforts.

Eviction mediation programs are, overall, considered to be quite successful in keeping people housed. For example, in 2023, over 13,500 people facing eviction were able to sidestep court entirely and access the Eviction Resolution Pilot Program in Clark County, Washington as a preventative measure. Of the cases mediated, 77% ended in agreement, usually within a month’s time. Though every jurisdiction, and each eviction mediation program within it, is unique, mediation generally cuts down on costs and time spent relating to housing disputes for parties.

Unfortunately, mediation programs tend only to garner the requisite political will to establish and sufficiently fund them during moments of publicly recognized crisis, such as the 2008 subprime mortgage crisis and the COVID-19 pandemic. As such, to consistently reap the individual and collective benefits of eviction mediation, these programs and their advocates should look to other champions and funding sources.

Post-Crisis Challenges: Funding & Will

Even at the height of their success during the COVID-19 pandemic, eviction mediation programs understood the uniqueness of the public attention—and funding—they were receiving. In 2021, the director of an eviction diversion program highlighted to me this transience: “We are in a unique moment. We now have a billion dollars in rental assistance flooding across the country and [we need] to get all the parties to the table to be able to use those funds. […] We know it probably won’t last forever.”

They were right. Within the last 18 months, many eviction mediation intiatives have been forced shut their doors. A quick Google search will lead you to a long scroll of dead links or webpages informing you that a program’s “funding has been depleted.” Even the Washington state success story mentioned above is no more, the shuttering of which caused eviction filings in Clark County to almost double within one month of its closing. Many of the eviction mediation programs active during the COVID-19 pandemic were propelled to popularity by federally funded rental assistance programs and propped up by the local and state moratoria keeping renters legally within their homes. Without these funds and legal conditions, evicton mediation programs had little leverage to drive important stakeholders to the table.

Without financial incentives and legal interventions that uplift mediation as a viable process for dispute resolotion, we are forced to think creatively about how to incentivize stakeholders of all kinds to buy into the process. Because the exact procedure of evicting someone often depends on the specific policies of a local court system, finding a judicial champion who will voluntarily refer cases to an eviction diversion program was considered by a majority of court administrators interviewed for the ABA/HNMCP study as “essential” to the success and longevity of any eviction diversion program.

Judges can do more than determine the outcomes of a housing dispute. With a judicial champion in place, for example, a court could condition filing on participating in mediation. According to the U.S. Department of Justice, courts may also choose to pass temporary administrative orders requiring landlords to apply for rental assistance prior to filing for eviction for nonpayment of rent; postpone pending eviction cases in order to allow litigants time to apply for rental assistance; or modify court notices and/or form filings to alert litigants to the availability of eviction diversion programs, including mediation. A mediator once shared with me that eviction mediation programs “live and die based on the whims of the Presiding Judge. If they’re not on your side, you won’t have a program for long.” While mediation intiatives in some jurisdictions have long-standing champions of this kind, others struggle to locate judicial allies and are forced to fold as a result.

A Possible Path Forward: Situating Eviction Mediation in Public Health?

As the urgency of the impact of COVID-19 wanes from America’s public conscious, so too has funding for and political interest in eviction mediation programs as part of court programs. Given the challenges in identifying new forms of funding, building buy-in across stakeholders, and identifying judicial champions who can bolster this work, it may be time to look outside of court for the survival of eviction mediation. The world of public health may provide a different forum—and therefore a different set of resources—within which to work.

Eviction, and housing stability more broadly, is a public health issue. Research indicates that eviction is associated with adverse health outcomes, including heightened risks of depression, anxiety, and other mental health issues. The stress of eviction and subsequent housing instability can exacerbate these conditions, and lead to an overall increase in mortality. Evicted individuals also often face housing insecurity, increasing the likelihood of substandard living conditions and being unhoused, which are linked to various health issues, such as respiratory illnesses and mental health disorders. These impacts are non-uniform, with eviction filing experience disproportionately affecting women and Black renters. Moreover, per my research with the Princeton Eviction Lab, at the time of this writing, at least ten people are reported to have died while being evicted from their homes in 2024 alone. Other forms of violence are reported to happen several times a month, including physical altercations between tenants and landlords, incidents of violence involving law enforcement, cases of arson, and self-harm.

The bad news is that economically precarious renters have higher than average risks around health and mortality. The good news is that mediation—especially when paired with financial assistance—can help keep people housed and avoid this litany of negative health outcomes and threats to their personal safety. With this in mind, if court-based eviction mediation programs are not poised to continue, eviction mediation may find a new home within community-based public health interventions. For example, medical-legal partnerships embed lawyers as specialists in health care settings. When legal problems, like an eviction, are detected, clinical staff can refer patients directly for legal services. But what if these legal issues have complex relational dimensions? Might tenants benefit from mediators being on site too?

Or perhaps this model could be inverted. Mediation itself is well poised to act as a site for public health intervention. It can be used preventatively, in a pre-filing capacity, to help connect parties to essential services to help meet the very financial, legal, and/or health needs that contribute to unequal health outcomes in the first place. Data suggests that mediation program managers would be open to one such preventative model. Of the staff of eviction diversion programs that were surveyed in the ABA/HNMCP survey, over 70% of respondents favored pre-filing interventions: mediation either at the time a tenant applies for unemployment, SNAP, and/or TANF benefits, or at the moment that a landlord provides notice of eviction to a tenant. Furthermore, it seems landlords might be open to it too: of those surveyed, roughly 46% of landlords expressed a preference for pre-filing interventions.

Without the need to rely on judicial or political champions to divert disputes away from litigation, a new procedural landscape could open up to parties—one that might lead more directly and consistently to financial, psychological, and personal safety for the most at-risk tenants.

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